Human Rights Watch is deeply concerned by the human rights implications of the draft Penal Law for Crimes of Terrorism and Its Financing of 2011 (the “draft counterterrorism law”). The flaws of the draft counterterrorism law can be summed up under the following categories, all of which in some way would seriously undermine the protection of human rights if implemented: problematic definitions of terrorism; broad restrictions on rights to freedom of speech, peaceful assembly, and association; excessive police and prosecutorial powers, infringing on the right to privacy; and intrusions on the independence of the courts and on the right to a fair trial.
We believe these flaws to be so serious – and ultimately so detrimental to the fundamental rights of all Saudis – that an entirely new law to address terrorist offenses be drafted and given consideration.
1. Vague and overbroad definitions of terrorism and terrorist acts
Article 1 of the draft law defines a terrorist crime as:
every criminal action described in this law, and anything that the offender perpetrates in word or deed in furtherance of an individual or collective project intended to disturb the public order of the state, or to shake the security of society, or the stability of the state, or to expose its national unity to danger, or to suspend the basic law of governance or some of its articles, or to insult the reputation of the state or its position, or to inflict damage upon one of its public utilities or its natural resources, or to threaten to carry out acts that lead to the named purposes.
Declaring the state as an unbeliever, and using the ways of declaration of unbelief that lead to the commission of a terrorist crime, or inciting to it, is part of the meaning of terrorist crime, as long as it is such as to generate the ideological and religious grounds to justify those crimes or to call for those ideas or to incite them or to publish articles and information that incites or may lead to the execution of terrorist activity.
The article goes on to define the crime of financing of terrorism:
Every action that includes gathering, giving, taking, or allocating funds, or transporting or transferring them or their returns [profits] to any terrorist activity, be it individual or collective, organized or unorganized, domestically or abroad, either by direct or indirect means, from a legal or illegal source, or to carry out any banking, currency, financial, or commercial transaction in the interest of this [terrorist] activity, or elements thereof, or to acquire, directly or through intermediaries, funds in order to use them in the interest of [such terrorist activity], or for calling for and propagating principles [of such terrorist activity] or for arranging training sites or housing for any elements of [such terrorist activity], or to supply [these elements] with any kind of weapons or falsified documents, or offering any other support or financing mechanisms.
This definition goes far beyond the internationally recognized elements of terrorist crimes as those crimes that are intended to, or constitute: intentional hostage taking; intentional causing death or serious bodily injury; using lethal or serious physical violence against one or more members of the general population; provided such action is intended to provoke a state of terror in the general public or compel the government or an international organization to do or abstain from doing something. Such actions, moreover, should already be defined as serious crimes in national law in all their elements.[1]
Only in the draft counterterrorism law’s extra-territorial application to persons committing acts outside the kingdom do these stricter conditions apply. For acts committed outside the kingdom to be considered terrorist, the draft law states that they would need to aim at:
a) changing the system of governance in the kingdom; b) suspending the basic rule of governance or some of its articles; c) compelling the state to commit an act or to abstain from it; d) causing damage to public property of the state abroad …; e) committing [terrorist] acts in the body of a means of transportation registered with the kingdom or carrying its flag; f) infringing upon the interests of the kingdom or its economy, national or social security.”
Some of these elements of the definition of the crimes of terrorism and their financing are exceedingly vague, such as “disturb[ing] public order,” “shak[ing] the security of society or the stability of the state,” or “infringing upon the interests of the kingdom.” Only protecting “public order” is recognized in international human rights law as a legitimate purpose for limiting certain other rights. The Siracusa Principles, drawn up by international legal experts in 1984, provide authoritative guidance to the permissible limitations to certain civil and political rights. This document defines “public order” as “the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded.”[2] State practices that violate human rights, such as Saudi Arabia’s denial of the rights to participate in public affairs, freedom of religion, and freedom of assembly, as well as its severe limits on other basic rights, such as freedom of association and expression, or systematic state and societal discrimination against women, cannot constitute a defensible understanding of “public order.”
Contrary to international guidelines, the draft counterterrorism law’s definition of terrorism makes no mention of the element of violence resulting in the death or serious bodily harm of the general population or individual persons, and even the narrower definition of acts committed abroad fails to require that the act involve violent means.
Overly vague language raises due process concerns in other provisions. Article 48 imposes half the penalty for a terrorist offense on any person “who knew of a project to carry out a terrorist crime or its financing and did not inform the concerned authorities despite being able to do so.” If the crime in question leads to kidnapping, murder, destruction, explosion or smuggling of weapons or explosives, the person who failed to inform faces the same penalty as the one for those crimes. Article 69 obliges guardians to inform the concerned security services within 72 hours if their sons “go missing,” without, however, imposing a penalty for failing to do so.
The draft counterterrorism law elsewhere includes other acts that bear no relation to terrorist acts. Article 29, for example, criminalizes “describing the king—or the crown prince—as an unbeliever, doubting his integrity, defaming his honesty, breaking the [oath of] loyalty [to him], or inciting such [acts].” Article 54 would criminalize “agreeing to a suicide operation” regardless of whether the suicide operation targeted or indiscriminately harmed civilians or in some other way constituted a terrorist act.
2. Unwarranted limits on speech, assembly, and association
The overbroad definitions of terrorism have the effect of curtailing the rights to freedom of expression and other basic rights in cases with no connection to acts of terrorism. These rights are found in the Universal Declaration of Human Rights as interpreted internationally with respect to addressing the problem of terrorism.[3]
International human rights law allows restrictions on freedom of expression in cases where such expression is intended and likely to incite imminent violence.[4] The former UN special rapporteur on human rights and terrorism, Martin Scheinin, formulated the permissible restrictions of freedom of expression while countering terrorism to expression “that causes an objective danger of a terrorist offence being committed whether or not ‘expressly’ advocating a terrorist offence.” The term “causing an objective danger,” Scheinin writes, can “cover the situation of using coded language, but does not reduce the requirement to prove both a subjective intention to incite as well as an objective danger that a terrorist act will be committed.”[5]
Several other articles unduly restrict the right to freedom of expression under international law. This is in addition to the overbroad definition of terrorism in article 1 that would violate the right to freedom of expression by prohibiting:
insult[ing] the reputation of the state or its position … Declaring the state as an unbeliever, and using the ways of declaration of unbelief [if it] generate[s] the ideological and religious grounds to justify those [terrorist] crimes.
Article 29 criminalizes lese majeste(insulting the monarch), and article 30 criminalizes “issuing—in writing or orally—a declaration of unbelief or a declaration that leads to disrupting public order of the country or shaking its stability.” Article 51 criminalizes “publicly attacking any of the established principles of Islamic Shari’a, or the established principles of the legitimacy of the state, provided such [expression] may lead to shaking the stability [of the state] or to a terrorist crime.” Article 67 shields the Interior Ministry and judiciary from any outside public scrutiny by making it a criminal act to “[reveal] to any person any of the procedures in reports, inquiries, investigations, or trials … or revealing any evidence.”
A number of other articles infringe on free speech with overbroad and vaguely worded provisions and a tenuous link to acts of terrorism. For example, article 43 criminalizes setting up or publishing a website “to facilitate communicating with leaders or any member of terrorist organizations or to propagate their ideas”(there is no definition for what constitutes a terrorist group or organization). Article 44 criminalizes “publicly praising [or] propagating [in any form] a terrorist crime, or any topic intended to give political instructions to the kingdom, or any idea that infringes the national unity” even if the original action is lawful. The article further criminalizes possession of any media calling for or propagating a terrorist crime if intended to show to others.
The draft law also criminalizes certain forms of association and assembly in a manner that violates international human rights standards. For example, article 47 criminalizes “organizing a demonstration, participating in its organization, assisting, calling for, or inciting it,” without any reference to terrorist acts.[6] The same article also criminalizes raising “banners or pictures that infringe upon the country’s unity or its safety, or that call for sedition and division among individuals in society, or inciting such acts.”[7]
Article 52 would prohibit meetings with members of any terrorist organization if they “go against the country, its security, or to shake its stability or its religious positions, or to expose its international relations to harm.” On the face of it, this would, for instance, make a journalist liable for criminal indictment if he were to interview a person alleged to be a member of a terrorist organization and published an interview that prosecutors considered harming Saudi Arabia’s international relations.
The special rapporteur on human rights and counterterrorism noted “with concern the increase of infringements upon the exercise of the right to freedom of assembly and association in the name of counter-terrorism,” and stressed that these rights are fundamental in a democratic society and that “limitations must be narrowly construed as to their objective, i.e. counter-terrorism.”[8] He further stated that “It is only when the association engages in or calls for the use of deadly or otherwise serious violence against persons, i.e. the tactics of terrorism, that it may be characterized as a terrorist group and its rights or existence limited and possibly subjected to the application of criminal law.”[9] The broad scope of articles 47 and 52 fail to meet this test.
3. Excessive police powers without judicial oversight
The draft counterterrorism law ascribes major new powers to the minister of interior that will undermine existing due process rights of the accused.[10] While the prosecution service in Saudi Arabia is only nominally independent within the Ministry of Interior, the counterterrorism law expands the minister of interior’s control over the public prosecution service and undermines the role of the judiciary.[11] The draft law also expands police powers of arrest, detention, and solitary and incommunicado detention, and allows administrative detention – detention without trial – under the authority of the minister of interior.
Articles 8 and 22 of the draft counterterrorism law empower the interior minister to order and carry out arrests and detentions of terrorism suspects without recourse to the prosecution service. Article 2 classifies terrorism crimes as among the “major” crimes carrying mandatory pre-trial detention, in violation of international standards which provide that detention should be exceptional and is permissible only after probing individual circumstances, such as a flight risk, interference with the course of justice, or a return to crime in case the suspect is released. Making pre-trial detention mandatory precludes such a determination. Article 9 allows the investigators of the interior ministry to order up to 120 days of incommunicado detention of terrorism supects, and the court may extend that period indefinitely. The current legal limit is 60 days, during which the detainee can communicate with his or her legal representative.[12] Under the draft counterterrorism law, only the interior minister – and presumably not the courts – may temporarily release a terrorism suspect (article 10), such as for furlough, or on bail, pending trial.
Article 5 designates the minister of interior as the person who issues “an order to coordinate” work on investigating terrorist crimes “between the investigative agency and the public prosecution.” Article 8 extends the current maximum of six months’ pre-trial detention[13] to a further six months for a total of one year without judicial oversight.
The special rapporteur on human rights and counterterrorism has highlighted the importance during arrest and interrogation of ensuring a suspect’s right to access to a lawyer “from the moment of arrest or detention,” prohibiting secret detention, and taking measures against ill-treatment, which would include strict limits on solitary detention.[14]
The draft law gives the interior minister new powers to obtain private financial and communications information without a judicial warrant. If investigators have “sufficient evidence that [information sought] has a connection to the commission of one of the crimes provided for in this law,” the interior minister may obtain any financial information, without judicial oversight, from the Saudi Arabian Monetary Agency, the kingdom’s central bank (article 18). Article 22 requires only that the interior minister provide a reason for “bringing the truth to light” in order to be able to—also without judicial oversight—monitor all types of communications, whether a crime has taken place or the minister believes one may take place.
The special rapporteur on human rights and counterterrorism has set out specific tests on permissible restrictions on the right to privacy in combating terrorism.[15] He noted that “targeted surveillance measures [may be used ], provided that it is case-specific interference, on the basis of a warrant issued by a judge on showing of probable cause or reasonable grounds,”[16] none of which are provided by the draft counterterrorism law.
The draft counterterrorism law undermines the right to a remedy for violations of international law[17] by granting immunity to any government official complying with interior ministry orders in terrorism investigations. Article 38 “exempts [all government officials] from criminal responsibility that may attach to them in carrying out the duties in this law,” in particular in revealing the “content of secret information.”
Article 6 gives the interior minister the power to choose the members of a special prosecution unit that would be set up for “security cases.” Only the interior minister, not the prosecutors acting on their own, may decide to drop charges against a suspect (article 17).
The draft law undermines the presumption of innocence enshrined in international law[18] by compelling detainees to undergo “rehabilitation” measures regardless of whether they have been convicted of any crime.
Article 62 sets up special centers for the education of detainees and convicts in terrorism cases, “in order to rectify their ideas, and to deepen their attachment to the homeland.” Interior Ministry investigators may order a terrorism suspect or convict, “or whoever is surrounded by suspicion or instills fear,” to participate in rehabilitation centers in lieu of detention. Article 63 sets up different Correction and Rehabilitation Homes, also for detainees who have not been convicted as well as persons convicted in terrorism cases, in order to “facilitate them rejoining society, deepening their national attachment, and rectifying their erroneous concepts,” all under regulations to be issued by the interior minister. The Interior Ministry already operates such education and rehabilitation centers for terrorism suspects, but without a legal basis.
4. Violations of due process and the right to a fair trial
The draft counterterrorism law contains further restrictions on due process and fair trial rights in violation of international law. In a serious curtailment of existing rights under Saudi law as well as international fair trial standards, article 13 restricts the rights of terrorism suspects to be represented by a lawyer in every stage of criminal proceedings, including during the interrogation, as Saudi law currently provides.[19] Article 13 now restricts a suspect’s recourse to a lawyer to “a period of sufficient time, determined by the investigation agency before raising the charges to court.”
Article 15 allows the court to hear witnesses and experts appointed by the investigation agency without the presence of the accused or his or her lawyer, who only receive a notice of the content of what was said without revealing the identity of the expert, making it difficult to challenge the veracity or validity of expert opinions.[20]
Article 12 allows for trials in absentia, and only grants the guilty party the right of appeal, not of retrial, if apprehended.
The independence of the Specialized Criminal Court is also not guaranteed. Under the draft law, decisions by the Specialized Criminal Court would be subject to the executive’s approval. Under article 59, the minister of interior, but not the court, can release a convicted prisoner serving a sentence (as well as a pre-trial detainee). The law also allows for continuing administrative detention for persons convicted of terrorism crimes whose sentence is about to end. Article 65 sets up a committee in the Interior Ministry that can decide to prolong detention; its decisions are subject to appeal to the specialized court, however.
Article 8 of the draft counterterrorism law specifies that the Specialized Criminal Court has jurisdiction over terrorist crimes and their financing, including compensation claims for wrongful actions. The existence of the Specialized Criminal Court first became public in 2008 without publication of any special law—the Justice Ministry announced it had appointed certain sitting judges to constitute the court to hear a first set of close to 1,000 terrorism cases to begin in 2009. This court held all trials in camera and did not allow the accused the right to access legal counsel. It convicted 330 persons and acquitted only one in the first set of trials.[21] In April 2011, a prosecution spokesperson said that over 2,000 suspects were being referred to trial before this court, while 5,000 suspects had been released after “repenting.”[22] In June 2011, local but not international media were allowed access to some trials, though reporting appeared to be heavily censored or self-censored.[23]
Article 8 effectively serves as the Ministry of Interior’s insurance against increasing numbers of lawsuits filed against the ministry for arbitrary arrest and detention. The Interior Ministry’s domestic intelligence agency (al-mabahith al-‘amma), has had to appear several times in recent years before the Board of Grievances, an administrative court, which has accepted lawsuits against the agency where regular courts have not. Human Rights Watch is aware of at least a half-dozen high-profile cases. In some of them, the Board of Grievances has ruled against the mabahith and ordered the release of long-term, arbitrarily detained suspects, although the mabahith has so far failed to comply.
The draft counterterrorism law also removes any recourse to judicial redress or remedy if the prosecution service, rather than the mabahith, issues detention orders that violate Saudi law. In an ongoing case at the Board of Grievances, human rights activist Shaikh Mikhlif bin Dahham al-Shammari sued the prosecution service for arbitrary detention following his arrest on charges of “annoying others” in June 2010. The prosecution service argued that the Board of Grievances had no jurisdiction since prosecutors, despite being under the Ministry of Interior, enjoy immunity as judicial officers.[24] Article 61 of the draft law obliges “accused or convicted persons in the crimes of terrorism or its financing who have incurred harm as a result of the length of their detention or imprisonment for longer than what was decided or similar things” to petition a committee set up by the interior minister, rather than a court, to apply for damages.
Consistent with article 8 of the Universal Declaration of Human Rights, the special rapporteur on human rights and counterterrorism has stressed the importance of an effective right to a remedy and the role of courts as the guarantors of that right:
any individual who believes that his or her rights have been infringed must be able to seek redress, and should be able to do so by bringing a complaint to a court or oversight institution, such as an ombudsman, human rights commission or national human rights institution. Remedial provisions should be framed in sufficiently broad terms so as to enable effective remedies to be provided according to the requirements of each particular case, including, for example, release from arbitrary detention, compensation and the exclusion of evidence obtained in violation of human rights.[25]
Lastly, the draft law drastically increases the number of crimes carrying the death penalty, including for crimes that threaten rather than involve violence. It introduces the death penalty for 23 acts, and specifies minimum sentences, typically starting at 10 years and up to 25 years, without also specifying a maximum sentence. International law mandates that the death penalty be applied only to the most serious crimes such as those resulting in death or serious bodily harm, and urges states to abolish the death penalty. Human Rights Watch opposes the death penalty in all circumstances as cruel and inhuman punishment.
[1]See Model Definition of Terrorism in UN, Human Rights Council, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin,“Ten areas of best practices in countering terrorism” (“Scheinin 2010 Report”), December 10, 2010, available athttp://www2.ohchr.org/english/issues/terrorism/rapporteur/srchr.htm (accessed July 25, 2011), Practice 7, p. 14.
[2]UN, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985). para. 31.
[3]Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
[4]The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, U.N. Doc. E/CN.4/1996/39 (1996), principles 6 and 2.
[5]See Scheinin 2010 Report, pp. 15-16.
[6]The Security Committee of the Shura Council, an appointed body with some legislative powers, suggested removing this article; their suggestions are not binding.
[7]The Security Committee of the Shura Council canceled this article.
[8]Special Rapporteur on the promotion and protection of human rights while countering terrorism, Martin Scheinin August 16, 2006, A/61/267, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/477/03/PDF/N0647703.pdf?O... (accessed July 25, 2011), p.10.
[9]Ibid., p.11.
[10]On general principles on the administration of justice and counterterrorism, see “Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,” August 6, 2008, A/63/223 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/451/82/PDF/N0845182.pdf?O... (accessed July 25, 2011).
[11]See Human Rights Watch, Precarious Justice: Arbitrary Detention and Unfair Trials in Saudi Arabia’s Deficient Criminal Justice System, March 2008, https://www.hrw.org/en/node/62304/section/19, ch. XI (Bureau of Investigation and Public Prosecution)
[12]Criminal Procedure Law,article 119.
[13]Ibid., article 114.
[14]See Scheinin 2010 Report, p. XX. The UN Commission on Human Rights in an April 2003 resolution noted that “prolonged incommunicado detention may facilitate the perpetration of torture and can itself constitute a form of cruel, inhuman or degrading treatment or even torture.” UN Commission on Human Rights resolution 2003/32, “Torture and other cruel, inhuman or degrading treatment or punishment,”April 23, 2003, E/CN.4/2003/L.11/Add.4, para. 14. In interpreting the international legal prohibition against torture and cruel, inhuman or degrading treatment or punishment, the UN Human Rights Committee stated that “prolonged solitary confinement of the detained or imprisoned person may amount to acts” of torture and ill-treatment. UN Human Rights Committee, General Comment 20, Article 7, U.N. Doc. HRI/GEN/1/Rev.1 at 30 (1994), para. 6.
According to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, “Solitary confinement can in certain circumstances amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should last for as short a time as possible.” 2nd General Report, CPT/Inf(92)3, p. 20. The European Commission on Human Rights has stated that, “complete sensory isolation coupled with total social isolation, can destroy the personality and constitutes a form of treatment which cannot be justified by the requirements of security or any other reason.” Krcher and Mller v. Switzerland, Application No. 8463/78 (1983).
[15]The criteria for the test are: (a) Any restrictions must be provided by the law; (b) The essence of a human right is not subject to restrictions; (c) Restrictions must be necessary in a democratic society; (d) Any discretion exercised when implementing the restrictions must not be unfettered; (e) For a restriction to be permissible, it is not enough that it serves one of the enumerated legitimate aims; it must be necessary for reaching the legitimate aim; (f) Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument among those which might achieve the desired result; and they must be proportionate to the interest to be protected; (g) Any restrictions must be consistent with the other rights guaranteed in international law. See UN, Human Rights Council, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, December 28, 2009, A/HRC/13/37, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/178/04/PDF/G0917804.pdf?O... (accessed July 25, 2011), para. 17.
[16]Ibid. para. 21.
[17]Universal Declaration of Human Rights, article 8 (“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”).
[18]Ibid., article 11(1) (“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”).
[19]Law on Criminal Procedure, article 4.
[20]This is contrary to the Universal Declaration of Human Rights, which provides in article 10 that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him” (emphasis added).
[21]Human Rights Watch, Human Rights and Saudi Arabia’s Counterterrorism Response, p. xx.
[22]“Saudi sends 2,215 to trial on terrorism charges,” Alarabiya.net, April 2, 2011, http://www.alarabiya.net/articles/2011/04/02/143964.html (accessed July 12, 2011).
[23]Muhammad al-Sulami, “Riyadh trial gives a glimpse of methods terror suspects used,” Arab News, July 5, 2011, http://arabnews.com/saudiarabia/article467369.ece (accessed July 12, 2011).
[24]Letter from Muhammad bin Fahd al-Qabbani, representative of the Bureau for Investigation and Public Prosecutions in the Eastern Province, to President of the Third Circuit of the Administrative Court in the Eastern Province, undated, but written in response to the court’s letter dated January 11, 2011, on file with Human Rights Watch.
[25]See Scheinin 2010 Report, Practice 5. Model remedies provision, p. 14. See also, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (Dec. 16, 2005).
